Griffiths and Australian Postal Corporation (Compensation) - [2017] AATA 1025

Griffiths and Australian Postal Corporation (Compensation) [2017] AATA 1025 (4 July 2017)
Division:GENERAL DIVISION
File Number(s): 2014/6460; 2015/5905
Re:Roslyn Griffiths
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries
Date:4 July 2017
Place:Canberra

The reviewable decisions of 3 December 2014 and 12 October 2015 are affirmed.
........................[sgd]................................................
Deputy President Gary Humphries
Catchwords
WORKERS COMPENSATION – psychiatric condition – whether pre-existing condition – borderline personality disorder – depression – whether workplace injuries occurred – held that workplace injury occurred – whether workplace incidents contributed to injury to a significant degree – significant contribution established – whether wilful and false representation made by Applicant to not have had or not previously suffered from similar condition – whether exemption to liability established – wilful and false representations found – exemption to compensation established – decision affirmed.
EVIDENCE – expert evidence – opinion evidence - weight to be given to expert opinion not based on widely-accepted scientific criteria – importance of reasoning leading to opinion – expert assistance must not supplant role of decision-maker.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Anderson and Australian Postal Corporation [2016] AATA 228
JXTZ and Comcare [2017] AATA 880
Kennedy and Comcare [2015] AATA 334
Kennedy v Cordia (Services) LLP [2016] UKSC 6
Wiegand v Comcare [2002] FCA 1464
Secondary Materials
American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)
REASONS FOR DECISION
Deputy President Gary Humphries
4 July 2017

Before the Tribunal is an application by Ms Roslyn Griffiths, an employee of the Australian Postal Corporation (Australia Post) since 2011. She seeks merits review of two decisions by her employer to refuse her compensation for a psychological injury or injuries she suffered in respect of her workplace between July 2011 and July 2014.
Ms Griffiths alleges that she was subject to bullying and harassment by other employees of Australia Post at the Riverina Mail Sorting Centre at Wagga Wagga, NSW from the time she started there in July 2011. This conduct culminated in an incident on 26 July 2014 in which she and another employee had a confrontation over the volume of a radio. Her GP issued a medical certificate on 11 August 2014 indicating that she was affected by Bully and Harassment at work place, with a date of injury of 26 July 2014. On 26 August 2014 she lodged a claim for workers compensation for a condition described as anxiety. A determination denying liability for this condition under the Safety, Rehabilitation and Compensation Act 1988 (the Act) was made on 14 October 2014, and affirmed on reconsideration (though for different reasons) on 3 December 2014.
Ms Griffiths made a second application for workers compensation on 13 August 2015, in which she alleged that a series of incidents involving bullying and harassment between 2011 and July 2014 had caused a condition of Anxiety + Depression. On 17 September 2015 Australia Post denied liability for this condition and, following reconsideration,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 1025
Decision Date: 4 July 2017

CaseChat Overview and Summary

This matter concerned an application for workers' compensation by Ms. Griffiths against the Australian Postal Corporation. Ms. Griffiths claimed to have suffered a work-related condition of anxiety and depression. The Australian Postal Corporation sought to rely on an exemption to liability under section 7(7) of the relevant Act, arguing that Ms. Griffiths had made wilful and false representations regarding a pre-existing similar condition in her compensation claims.

The primary legal issues before the Tribunal were whether Ms. Griffiths' employment had contributed to her psychological condition to a significant degree, and if so, whether section 7(7) of the Act operated to exempt the Australian Postal Corporation from liability due to Ms. Griffiths' representations. The Tribunal was also required to consider the weight to be given to expert evidence, particularly when it was not based on widely-accepted scientific criteria.

The Tribunal found that Ms. Griffiths' employment had contributed to her psychological condition to a significant degree, and that this condition constituted a disease under the Act. However, the Tribunal determined that Ms. Griffiths had made wilful and false representations in her compensation claims by answering "No" to the question of whether she had ever suffered a similar injury or illness, despite a documented history of postnatal depression, attempted suicide, major depressive episodes, and distress leading to hospital attendance and mental health care plans. The Tribunal held that these representations were wilful and false, and therefore section 7(7) of the Act operated as an absolute bar to her claim for compensation, irrespective of the significant contribution of her employment to her condition.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal would hesitate, in effect, to read down the provisions of s 7(7) in this way. It is reasonable to argue that the disease in each of these instances needs to have the same general clinical description, but to require that the claimed condition be a recurrence of the earlier condition for the exclusion to operate is, with respect, an interpretation not open from the ordinary meaning of the subsection’s words, nor is it an interpretation which has been previously applied by courts or tribunals so far as I am aware. Even if this were the appropriate reading of the subsection, the Tribunal considers that on balance the evidence discloses the postulated connection between at least some of the previous instances of depression in Ms Griffiths’ life and the depression for which she claimed compensation in 2014 and 2015. Conclusion The Tribunal is satisfied that Ms Griffiths made wilfully false representations to Australia Post about her previous experience of anxiety/depression when she lodged workers compensation claims in August 2014 and August 2015. The fact that these representations were no more, in each case, than a tick in a circle makes them no less false or deliberate. Courts and tribunals have tended to set a high bar for an employer to access the exemption in s 7(7); JXTZ is a recent example of this. However, it is harder to imagine a clearer case where the exemption would apply than the present instance. Indeed, if the exemption does not apply in the present circumstances it is difficult to conceive of circumstances where it ever would. Because s 7(7) is an absolute bar to compensation, notwithstanding the general merits of an applicant’s claim, Ms Griffiths’ applications must fail despite the Tribunal’s findings below. For the sake of completeness, the Tribunal outlines in general terms its view of the other key contentions put by the parties at the hearing.DID MS GRIFFITHS’ EMPLOYMENT SIGNIFICANTLY CONTRIBUTE TO HER INJURY? It was common ground between the parties, and the Tribunal accepts, that Ms Griffiths’ psychological condition was a disease pursuant to s 5B of the Act. That section provides:(1) In this Act: "disease" means: (a) an ailment suffered by an employee; or (b) an aggravation of such an ailment; that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee. (2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account: (a) the duration of the employment; (b) the nature of, and particular tasks involved in, the employment; (c) any predisposition of the employee to the ailment or aggravation; (d) any activities of the employee not related to the employment; (e) any other matters affecting the employee's health. This subsection does not limit the matters that may be taken into account. (3) In this Act: "significant degree " means a degree that is substantially more than material.

Ratio Decidendi

Legal Principle Established

For reasons set out below, the Tribunal does find that Ms Griffiths’ employment contributed, to a significant degree, to the onset of a psychological condition. However, it also finds that this condition does not constitute an injury under the Act by virtue of the operation of s 7(7). Because this finding disposes of her application for review, the Tribunal first sets out its reasoning on that score.THE OPERATION OF SECTION 7(7) Ms Griffiths’ psychiatric history was put before the Tribunal in some detail, and in turn was discussed by two psychiatrists and a psychologist who gave live evidence. It is unnecessary to range over that full history at this juncture, but to note only the following episodes in that history, and to observe that the fact that these episodes occurred was not controversial in these proceedings:·Ms Griffiths suffered postnatal depression following the birth of her third child in 1996.·She suffered depression, and attempted suicide, following the discovery in 1996 that her husband was transgender and the failure of her marriage.·Following the moving away of both her son and her partner, she was diagnosed in November 2008 with a major depressive episode.·In December 2010 she attended Wagga Wagga Base Hospital feeling extremely distressed after her 14-year-old daughter left home. She was subsequently referred to the Community Mental Health Team at Temora for short-term support.·She was brought to the Wagga Wagga Base hospital in March 2011 following a (possibly accidental) overdose of paracetamol. The hospital’s clinical notes record depressive symptoms …anxiety +++, and that she reports not wanting to wake up.·A mental health care plan was prepared for her in May 2011, to facilitate her access through Medicare to a psychologist. In her claim for workers compensation dated 26 August 2014, Ms Griffiths completed an Australia Post form in which she indicated that she suffered from a work-related condition of anxiety, and that she first noticed her illness on 25 July 2014. The form then asked Have you ever had a similar injury/illness? In response, she ticked the box against No. She made a further claim for workers compensation, on 13 August 2015, citing anxiety + depression as the illness claimed for. Again, she answered No to the question Have you ever had a similar injury/illness? Section 7(7) of the Act provides as follows:A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease. The purpose of the provision seems reasonably clear. An employee who is otherwise entitled to compensation for a disease under the Act loses that entitlement if he or she wilfully makes a false representation about not having previously suffered from that disease. A single deliberate misrepresentation in this respect is enough to disqualify the employee from compensation.